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New Lawsuit Alleges Coca-Cola, American Beverage Association Deceiving Public About Soda-Related Health Problems

Despite the scientifically established link between consuming sugar drinks and obesity, type 2 diabetes, and heart disease, the Coca-Cola Company and its trade association, the American Beverage Association, deceive consumers by denying and obscuring soda’s link to those diseases, according to a lawsuit filed today.

Bringing the action filed today in the Superior Court of the District of Columbia are Reverend William H. Lamar IV, pastor of the historic Metropolitan African Methodist Episcopal Church in Washington, DC; Reverend Delman Coates, senior pastor of Mt. Ennon Baptist Church in Clinton, MD; and the Praxis Project, a nonprofit organization focused on building healthier communities. Praxis had brought, but soon withdrew, similar litigation against Coke and the ABA in California pending the addition of the new plaintiffs.

“For far too long, Coca-Cola has been convincing people, including children, that soda is a source of fun and happiness and that it is safe to drink,” said Rev. Coates. “But from my vantage point, Coca-Cola is devastating the African American community by fueling an epidemic of obesity and an epidemic of type 2 diabetes. I visit hospitals and homes, and officiate at funerals. I routinely encounter blindness, loss of limbs, strokes, and even death. Efforts to talk about the role of sugar drinks and advertising in these epidemics, including many of my own efforts—are hampered by the effects of Coca-Cola’s deceptive marketing.”

The lawsuit quotes Coca-Cola executive Katie Bayne’s much-publicized statement that “[t]here is no scientific evidence that connects sugary beverages to obesity” as representative of the kind of deception that Coke and the ABA publicly engage in. Sugar-sweetened beverage consumption is linked scientifically not only to obesity but also to type 2 diabetes and heart disease. The Centers for Disease Control and Prevention, the federal government’s 2015 Dietary Guidelines for Americans, the American Heart Association, the American Medical Association, and numerous other prominent medical and health authorities all acknowledge such links.

Plaintiffs and Andrew Rainer Discuss the Lawsuit

“When industry wanted to sell more cigarettes, it used powerful advertising to make smoking seem glamorous, and it tried to muddy the waters and make it seem as if smoking’s link to lung cancer were in doubt,” said Rev. Lamar. “Soda might not be smoking, but the tactics of the companies are strikingly similar to me: Market heavily. Cast doubt on science. People need and deserve to know the facts about soda consumption. They need to know that the beautiful bodies seen in Coke commercials are not the norm for regular soda drinkers. And they need to know about the possibility of lost limbs, blindness, sexual dysfunction, and premature death.”

Coca-Cola and the ABA’s larger advertising campaign attacks the science while promoting lack of exercise as the primary driver of obesity and related epidemics. The ABA wrote that “the anti-soda campaign misleads people with unsound science,” and that “[A]ll calories are the same regardless of food source,” according to the complaint. James Quincey, Coca-Cola’s new CEO, claimed in a widely publicized interview that “the experts are clear—the academics, government advisors, diabetes associations … a calorie is a calorie.”

Coke also paid health professionals to promote sugar-sweetened beverages on the Internet, including one dietitian blogger who suggested that an eight-ounce soda could be a healthy snack, like “packs of almonds,” according to the complaint. The complaint also cites the widely reported secret funding by Coca-Cola—$120 million between 2010 and 2015—to scientists and projects that publicly advanced the proposition that “energy balance” is more important than reducing soda consumption. Meanwhile, advertising campaigns like “Be OK” misleadingly implied that light exercise, such as laughing out loud for 75 seconds, offsets the health effects of Coke consumption, or, in the words of the ABA-funded campaign known as “Mixify,” that some afternoon Frisbee earned players “more” soda.

Coca-Cola’s Deceptive Ad Campaign

Other promotions deceptively advance sugar drinks as a safe form of essential hydration. The complaint again cites Coca-Cola’s Bayne, who claimed that “What our drinks offer is hydration. That’s essential to the human body. We offer great taste and benefits … We don’t believe in empty calories. We believe in hydration.”

“We need to put permanent protections into place that protect kids’ health by shielding them from Coke’s omnipresent and deceptive marketing,” said Praxis Project executive director Xavier Morales. “It seems to me that Coke plays the long game and wants to hook consumers young. But its marketing and advertising are putting too many Americans, especially children and teens of color—who are twice as likely to see an advertisement for soda—on a trajectory that includes obesity, diabetes, and heart disease. These medical conditions kill or maim. When one in every two Latino and African American youth born since 2000 are expected to get diabetes in their lifetime, we need to stand up and take action. Praxis is proud to be bringing this lawsuit.”

In Washington, DC, more residents die each year from complications related to obesity than from AIDS, cancer, and homicides combined, according to the city’s health department.

The plaintiffs are represented by Maia Kats, litigation director of the nonprofit Center for Science in the Public Interest; Andrew Rainer and Mark Gottlieb of the Public Health Advocacy Institute; Daniel B. Edelman of the law firm Katz Marshall and Banks, LLP; and Michael R. Reese of the law firm Reese LLP. The suit seeks an injunction under the District of Columbia’s Consumer Protection Procedures Act, which protects District residents from improper trade practices. Such an injunction would stop Coke and the ABA from engaging in the unfair and deceptive marketing of sugar-sweetened drinks—including any direct or implied claim that the drinks do not promote obesity, type 2 diabetes, or cardiovascular disease.

“For decades, the tobacco industry engaged in a systemic campaign of deception to cast doubt on the science connecting smoking to lung cancer,” said Kats. “Today Coca-Cola and the ABA are conducting their own campaign of deception to hide the science connecting sugar-sweetened beverages to obesity, and obesity-related diseases like diabetes and heart disease. We seek to protect consumers and to stop the deception.”

The Public Health Advocacy Institute’s litigation director Andrew Rainer, who has tried cases against cigarette companies, said, “Coca-Cola and the ABA have taken not just a page but a whole chapter out of Big Tobacco’s playbook for denying scientific truth. They claim there is “no science” linking their products to obesity, type 2 diabetes.”

PHAI Joins Center for Science in the Public Interest in Filing Lawsuit Against Coca-Cola for Deceptive Marketing

BOSTON – Two non-profits that use litigation as a public health strategy have joined forces in a lawsuit accusing the Coca-Cola Company (“Coke”) along with the American Beverage Association (“ABA”) of misleading the public about the science that links heart disease, obesity, and diabetes to consumption of sugary beverages. For years, the Public Health Advocacy Institute at Northeastern University School of Law in Boston and the Center for Science in the Public Interest in Washington, DC relied on civil litigation as a tool to achieve policy change to benefit public health.

Download the Complaint here.

The lawsuit was filed today in federal court in the Northern District of California on behalf of a California non-profit, the Praxis Project, which has had to devote resources to correcting the misleading messages that Coke and the ABA have disseminated. These include spreading the notion that the main cause of obesity is lack of exercise or that “a calorie is a calorie,” regardless of whether it comes from Coke or from kale. The science, in fact, shows that sugary drinks such as Coca-Cola have been found to play a real role in the obesity crisis and that calorie intake is more significant than calorie expenditure in terms of the problems of obesity and overweight. The lawsuit also accuses Coke of failing to comply with its pledge to not market to children. The action alleges violations of California’s Business and Professional Code as well as negligent and intentional breaches of a special duty to protect the consuming public.

The plaintiffs seek a court order to enjoin Coke and ABA from denying the link between sugary drinks and obesity, diabetes, and cardiovascular disease and to stop any marketing to children. They also seek a court order for defendants to disclose and publish all research they have directly or indirectly conducted on the impact of sugary beverages on health and the impact of exercise on obesity vs sugary drink consumption. Furthermore, the plaintiff asks the court to order the defendants to fund a corrective public education campaign and place prominent warnings on their internet sites that consumption of sugary beverages can lead to obesity, diabetes, and cardiovascular disease.

The attorneys for the plaintiff include Maia C. Kats, litigation director of the nonprofit Center for Science in the Public Interest; Andrew Rainer, litigation director of the nonprofit Public Health Advocacy Institute; and Michael R. Reese of the law firm Reese LLP.

PHAI attorney Andrew Rainer considers this lawsuit to be about defending science from manipulation by those who seek to increase profit at the expense of public health. Rainer says, “the Public Health Advocacy Institute has joined in this complaint in an effort to prevent the distortion of science for corporate gain. Just as the tobacco industry manipulated and distorted science for decades to deny the dangers and addictiveness of cigarettes, and the oil industry works to systematically distort science to deny climate change, Coca Cola and the American Beverage Association are engaged in a campaign to deny the established science linking sugar-sweetened beverages to obesity and diabetes.”

Mark Gottlieb, executive director of the Public Health Advocacy Institute, characterizes this filing as, “the tip of the iceberg when it comes to purveyors of sugar-added products seeking to shift all responsibility for health harms to their consumers. Coke pays dietitians to tell consumers things like drinking coke can be a healthy snack and pays scientists to deny that sugary drinks are linked to obesity and then suggests that the main cause of obesity and related disease is lack of exercise. The hypocrisy of suggesting to consumers that burning calories through laughing can offset the harmful effects of drinking soda is no laughing matter. And, yes, Coke really suggested that.”

PHAI’s partner, the Center for Science in the Public Interest included the following bullet points from the complaint in its press release.

Coca-Cola’s senior vice president, Katie Bayne, claims that “[t]here is no scientific evidence that connects sugary beverages to obesity.”
“There is no unique link between soda consumption and obesity,” claims a post on the ABA’s website.
“Simply put, it is wrong to say beverages cause disease,” the ABA stated in another release.
Coke’s incoming CEO, James Quincey, equated sugar-sweetened beverages to any other calories, dismissing their unique contribution to the obesity epidemic by asserting such beverages contribute only two percent of calories overall.
Coke also paid health professionals to promote sugar-sweetened beverages, including one dietitian who suggested that an eight-ounce soda could be a healthy snack, like “packs of almonds.”

The Public Health Advocacy Institute set up its Center for Public Health Litigation in 2014 in order to hold responsible corporate interests that harm public health and defend policies that protect public health.

No More Heart Health Valentines from Coke

By Cara Wilking, JD, Consulting Attorney, Public Health Advocacy Institute

[PLEASE NOTE: This blog post was prepared prior to unexplained changes to Coca-Cola’s database of its funding of organizations in the United States. The information reflects the dollar amounts initially reported by Coca-Cola in the Fall of 2015.]

For years, the month of February has been the kick-off of the Coca-Cola Company’s sponsorship of the National Heart Lung and Blood Institute’s (NHLBI) Heart Truth campaign. Heart Truth began in 2002, with the goal of raising awareness that heart disease is the number one killer of women. The campaign fits within the general mission of NHLBI to collaborate with a range of stakeholders to promote the prevention and treatment of heart, lung, and blood diseases. As part of the Department of Health and Human Services (HHS), NHLBI provides research funding and conducts outreach with the public to improve the public health. As a federal agency, NHLBI is subject to legal limits on its use of funds and HHS’s ethical guidelines for co-sponsorship of events. These guidelines are meant to guard against conflicts of interest that would undermine the primary mission of NHLBI. Coke’s corporate funding disclosures in the Fall of 2015 indicate that as public pressure on NHLBI built, Coke shifted the bulk of its heart health giving to a tight circle of non-governmental heart health organizations consisting of the American College of Cardiology, the Preventive Cardiovascular Nurses Association, the American Dietetic Association, and Brigham and Women’s Hospital in Boston, MA.

Coke’s Heart Health Campaign

From 2008 to 2014, The Coca-Cola Company, under its Diet Coke brand, was the Heart Truth campaign’s most visible co-sponsor: Despite the fact that HHS’s ethical guidelines place a particular emphasis on avoiding the appearance of product endorsement, Heart Truth logos were printed on billions of Diet Coke cans, heart health-themed Diet Coke ads ran during the Olympic Games, Coke enlisted high-profile celebrities like Heidi Klum to appear at Heart Truth events, and Diet Coke beverages were distributed at community heart health screenings.

NHLBI’s partnership with Coke drew ire from the public health community because it seemed untenable to partner with a company that also sells sugary drinks linked to obesity and heart disease. The fact that the partnership focused on Diet Coke was particularly problematic because it closely followed the release of the NHBLI-funded Framingham Heart Study’s findings that consumption of diet soft drinks appeared to be linked to increased risk factors for heart disease.

In 2010, the Center for Science in the Public Interest (“CSPI”) called on the government agency to sever its ties with Coke, but NHLBI publicly refused to do so. The primary rationale NHLBI gave for keeping Coke as a corporate sponsor was that the company allowed the agency to extend its reach to get out the message that heart disease is an important health concern for women. CSPI’s challenge to the program led to a public debate about the role of Coke in NHLBI’s educational activities.

Coke’s Heart Truth Contracts with NHLBI

In 2010, PHAI requested Coke’s contracts with the NHLBI pursuant to the Freedom of Information Act (FOIA) and received copies of contracts the company entered into with Ogilvy Public Relations Worldwide on behalf of the NHLBI from 2007, 2008, 2009 and 2010:

At the time, the dollar amounts in these contracts were redacted as proprietary information.

Coke’s recent funding disclosures date back to 2010, and show that in 2010 the company paid NHLBI $440,000 in support of a fashion show to promote heart health awareness. Through its contracts with NHLBI for the 2010 Heart Truth Fashion Show, Coke was granted:

-Exclusivity as the only carbonated beverage category event sponsor

-Full use of the NHLBI Heart Truth logo in any Coke marketing, advertising and or promotional materials or activities

-Assistance from NHLBI’s agent, Ogilvy, in the “development of heart health content and messages” for its use

-“Access to heart health experts and spokespeople to serve on Coca-Cola’s behalf including at Coca-Cola luncheons, ambassador program, opinion shaper and other customer/VIP events”

-Highlighted attention to Coca-Cola’s partnership activities on the Heart Truth webpage

-Soundbites from NHLBI representatives at Heart Truth events for use by Coca-Cola

-The right to provide free samples of Coca-Cola products at the fashion show

-The right to feature Coca-Cola advertising in essentially all aspects of the event

-Pre-approval of “all [NHLBI] creative materials, press releases, collateral materials, signage and other items using” Coca-Cola’s trademarks

The breadth of the rights granted to Coca-Cola is in keeping with a typical private arrangement for event sponsorship, but seems startling in the context of a government run educational campaign. Ogilvy Public Relations Worldwide was awarded multi-year government contracts from the NHLBI totaling $11.9 million to execute the Heart Truth campaign on its behalf. Organizers of complex, national educational campaigns must work with sponsors to ensure events run smoothly. The contracts Ogilvy entered into on NHLBI’s behalf with Coke, however, reveal a situation where it appears that NHLBI was granting Coke rights to advance the company’s commercial agenda.

Coke Abruptly Shifts Its Heart Health Spending

In March of 2010, PHAI wrote a detailed letter to the Associate General Counsel for Health and Human Services (HHS), asking that it review NHLBI’s relationship with Coke pursuant to the agency’s written ethical guidelines for co-sponsorships of events. In its reply, HHS cited a general provision of the Public Health Service Act granting NHLBI the authority to conduct health promotion campaigns and deferred decision-making about the appropriateness of Coke’s co-sponsorship of the Heart Truth campaign to NHBLI. Despite NHLBI’s public defense of Coke in response to CSPI’s letter and apparent agency inaction after PHAI’s request to review the relationship, after 2011 Coca-Cola shifted its support for Heart Truth and other heart health activities sharply away from the NHLBI.

According to Coke’s initial funding disclosures in the Fall of 2015, between 2010 and 2015, Coke’s total funding of heart health-related organizations and educational activities was approximately $8 million (click here for a detailed description). $7.8 million of these funds went to just five organizations: NHLBI (via Ogilvy and the Foundation for the National Institutes of Health), the American College of Cardiology, the Preventive Cardiovascular Nurses Association, the American Dietetic Association, and Brigham and Women’s Hospital in Boston, MA. NHLBI-related funding of the Heart Truth totaled $1.9 million with Coke’s contributions peaking at $1 mil in 2011. Starting in 2012, Coke sharply reduced its direct NHLBI support and shifted its gifts to private organizations not subject to FOIA requests.

Coke’s Heart Truth Spending to Key Partners (2010-2015)

Brigham and Women’s Hospital Cardiologists Associated with Millions in Coke Money

Coke’s Heart Truth partnership with NHLBI was created under the leadership of then NHLBI Director Elizabeth (Betsy) Nabel, MD. Dr. Nabel is a cardiologist who left public service in 2010 to become President of Brigham and Women’s Hospital (BWH) in Boston, MA. Dr. Nabel traveled to Canada to be an official 2010 Olympic Games Torchbearer for Coke and spoke glowingly about her relationship with Coke.

Nable

It turned out that Dr. Nabel was not the only Coke heart health partner at BWH. She was joined by Dr. JoAnne Foody, MD, the Medical Director of BWH’s Pollin Cardiovascular Wellness Center. Dr. Foody is featured as a heart health expert in continuing education presentations produced by Coca-Cola’s Beverage Institute for Health, and in 2011 was selected to serve as the Editor-In-Chief of the American College of Cardiology’s (ACC) CardioSmart initiative. ACC received $2.6 million in Coke funding for CardioSmart and community screenings between 2010 and 2015. CardioSmart is described as “a patient education site committed to providing accurate, un-biased heart health information in an advertising-free environment.”

Coke clearly valued its relationship with Dr. Foody. As was reported in 2012, she was included in an email sent from Coca-Cola executive Helen Tarleton to a list of “partners” in various health organizations sharing the company’s position on a proposed New York City ordinance to limit soda portions. The email asked Dr. Foody to disseminate a Coke infographic downplaying the role of sugary drinks in the obesity epidemic. Coke’s direct request to advance a policy position potentially at odds with CardioSmart’s mission to educate heart health patients is a striking example of the depth of the relationships it formed with its public health “partners.”

Foody

In 2013 and 2014, Dr. Nabel and Dr. Foody leveraged their relationship with Coke into $1.2 million dollars of funding for a BWH cardiovascular health initiative called ClimbCorps to promote stair climbing for heart health and provide heart health education. Dr. Foody served as the ClimbCorps’ Medical Director. In 2013, Coca-Cola executive Helen Tarleton personally attended a ClimbCorps event with Dr. Nabel and Dr. Foody. The program no longer has an active website and all links to ClimbCorps redirect to the BWH general website. The program’s emphasis on physical activity fit well within Coke’s overall obesity strategy to focus on physical activity as opposed to diet.

Coke Exits the Heart Health Picture

Coke’s funding disclosures paint a more complete picture of how it operated and who it turned to when it needed to shift its giving from a highly scrutinized government agency to private organizations. In response to public pressure, Coke has since bowed out of the heart health initiatives it funded over the past five years:

Coke ended its role as a corporate sponsor of NHLBI’s Heart Truth Campaign in 2014
After being called out by the New York Times for funding junk science promoted by Coke and researchers it funded that focused on what it calls “energy balance science” (which claims that there is no established link between soda consumption and obesity and promotes exercise as the most effective way of compensating for the extra calories derived from soda consumption), Coke announced in September 2015 that it would no longer fund the American College of Cardiology including the CardioSmart program
ClimbCorps is no longer an active program of BWH

In the process, millions of dollars were spent in ways that Coke itself now admits were not adequately transparent, and were inappropriate given the company’s overwhelming commercial interests in the health issues addressed.

There is no question that funds are desperately needed for programs to address crucial diet-related public health issues like cardiovascular disease in women. Coke spent $8 million on heart health education in five years (not including the in-kind contributions it made via specially printed product packages, Heart Truth dedicated websites and television commercials), while the federal government spent just $17 million on the Heart Truth campaign over ten years. The problem with Coke’s heart health spending is that its primary goal has been to downplay the role of sugary drinks in the obesity epidemic and to position diet beverages as healthy alternatives. Neither of these positions is fully supported by actual evidence and, as such, are in conflict with the mission of truly unbiased cardiovascular health initiatives.

There remain many unanswered questions about Coke’s heart health “partnerships.” To what extent did Coke’s initial participation with NHBLI’s Heart Truth campaign give the company legitimacy through what appeared to have been the government’s imprimatur and grant it access to the private organizations it subsequently partnered with? What other requests for political support did the company make of the heart health organizations it funded? How did Coke’s funding impact the heart health activities of the organizations it funded in terms of dietary recommendations to the public or support for public health policies at odds with Coke’s agenda? The most important question left in the wake of Coke’s co-optation of the Heart Truth campaign is this: Moving forward, how can the United States create and sustain unbiased funding mechanisms for the crucial public health issues of our time?

Coke’s Balancing Act

By Cara Wilking, JD, Consulting Attorney

The Coca-Cola Company’s pouring of millions of dollars into the Global Energy Balance Network (GEBN), a front group focused on exercise as opposed to diet to combat obesity, has crystallized an issue that the public health community has long been concerned about: the role of industry funding to research and develop solutions to public health threats. A New York Times story exposing this funding arrangement has led to a public relations nightmare that finally culminated in a formal statement from Coke’s Chairman and CEO, Muhtar Kent. Mr. Kent stated that the accusation that the company is deceiving the public about its support for scientific research “does not reflect our intent or our values,” and promised more transparency. He promised to make available a list of the funding it supports, and to convene expert panels to assist with future “investments in academic research.”

Coke’s funding of GEBN is part of a well-articulated company strategy it calls “Balancing the Debate.” Coca-Cola’s chief scientific officer, Rhona S. Applebaum , PhD, laid out the Balancing the Debate strategy at a 2012 conference for the sugar industry. (CLICK HERE FOR THE FULL PRESENTATION) The strategy seeks to discredit what the company calls “detractors” in the scientific community like Kelly Brownell, Dean of the Sanford School of Public Policy at Duke University (formerly of Yale University), and public health organizations like Center for Science in the Public Interest.

At that 2012 industry conference, Ms. Applebaum told participants that she had come with a “plea from Coca-Cola” that “we all have to work together and use science.”

To that end, Ms. Applebaum, shared Coke’s strategy to “Balance the Debate” by using three interdependent steps: “Cultivate Relationships,” “Collaborate Research,” and “Communicate Results.” These steps, if properly taken, will result in a balanced debate that will “Address the Negative” and “Advance the Positive” for the food industry.

Ms. Applebaum, was clear that cultivating relationships and research collaborations comes down to dollars and cents. She outlined how to use research funding for “defensive and offensive science and research” to address the issues faced by the food industry.

The GEBN seems to have been tailor-made for the offensive and defensive research Coke had in mind, and it amplifies and expands the mission and capabilities of Coke’s Beverage Institute for Health and Wellness, which is run by Ms. Applebaum. On a slide entitled “What Experts Tell Us,” Ms. Applebaum gave insight into the company’s research agenda to “Shift energy balance,” “Inspire/Motivate consumer behavior change,” and “Bring opportunities (on energy in/out).”

To add a gloss of legitimacy to Coke’s vision for funding science to serve its agenda, its chief scientific officer, Ms. Applebaum, co-authored two papers: one in 2009 with guiding principles for industry funding of food science and nutrition research, and one in 2012 with guiding principles for establishing panels of scientific advisers. With respect to funding food science and nutrition research like that conducted by GEBN, Ms. Applebaum co-wrote the following guiding principles:

In the conduct of public/private research relationships, all relevant parties shall:

1) conduct or sponsor research that is factual, transparent, and designed objectively; according to accepted principles of scientific inquiry, the research design will generate an appropriately phrased hypothesis and the research will answer the appropriate questions, rather than favor a particular outcome;

2) require control of both study design and research itself to remain with scientific investigators;

3) not offer or accept remuneration geared to the outcome of a research project;

4) prior to the commencement of studies, ensure that there is a written agreement that the investigative team has the freedom and obligation to attempt to publish the findings within some specified time frame;

5) require, in publications and conference presentations, fully signed disclosure of all financial interests;

6) not participate in undisclosed paid authorship arrangements in industry-sponsored publications or presentations;

7) guarantee accessibility to all data and control of statistical analysis by investigators and appropriate auditors/reviewers; and

8) require that academic researchers, when they work in contract research organizations or act as contract researchers, make clear statements of their affiliation; require that such researchers publish only under the auspices of the contract research organizations. (emphasis added).

These guiding principles clearly were not adequately followed in the case of Coke’s funding of the GEBN, and it remains to be seen what other research it has been cultivating as part of its effort to “balance the debate.” Moreover, the whole concept of funding “defensive and offensive science and research” is completely at odds with the principles of objective research design contained in the guiding principles.

Coke has had a concerted effort to fund science in its favor pursuant to a specific plan laid out by its chief scientist in 2012, and it failed to adequately follow the ethical guidelines its chief scientist helped to write in 2009. The remedies CEO Kent now promises are to disclose who the company has funded (something, according to their chief scientist, the company should have already been doing), and enlisting more experts to help sort things out. For Coke’s CEO to say that the criticism of actions that were clearly in line with a well-articulated Coca-Cola Company strategic plan and failed to comply with basic ethical principles co-written by its chief scientific officer “does not reflect” the company’s “intent” or “values” is partly right and partly wrong. It clearly reflects Coke’s intent to fund science to serve its interests. It does not, however, reflect the purported values of the company with respect to working with scientific researchers.

NYC’s new soda size restriction should survive any legal challenge (but, so far, hasn’t): An Update

Update: July 30, 2013

At this point, the Supreme Court of NY County (March 11, 2013) and the Supreme Court, Appellate Division, First Dept. (today) have ruled that the sugary beverage serving size cap in New York is invalid. The case name is: In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. New York Dept. of Health and Mental Hygene, et al..

Clearly, I was mistaken in my prediction (see original post below) that the measure would survive a legal challenge. While the City will seek review by the Court of Appeals of the State of New York (the state’s highest court), this has clearly turned into an uphill battle for Mayor Bloomberg and the City at this point.

Interestingly, the beverage industry has (so far) successfully relied on a case brought by the tobacco industry in the 1987 to successfully the stop the NY Health Council from taking steps to regulate smoking in public places. At that time, it was politically impossible to get the state legislature to enact smoking restrictions in public indoor areas and limit smoking in restaurants. Such a measure was viewed as an extreme infraction on smokers’ rights. In that case, Boreali v. Axelrod, the court held that for several reasons, only the legislature was suited to enact such a restriction. Those same reasons are cited in today’s decision reinforce the impression that many of the same societal changes and setbacks experienced in tobacco control are playing out around obesity prevention policy.

In Boreali, the Court found that the administrative health agency took economic issues into account by exempting restaurants and bars from smoking bans. Economic concerns are beyond the scope of a health agency’s legal authority. In today’s decision, the fact that NYC exempted convenience stores and bodegas was interpreted as an economic concession (despite the City’s strong arguments to the contrary).
In Boreali, the fact that the state legislature had previously rejected smoking bans suggested that it was inappropriate for a health agency to go ahead and do an end-run around a matter previously before the legislature. Likewise, in today’s decision the Court found that the NY City Council has “targeted” sugary beverages in the past, so this subject matter should be off-limits to the Board of Health.
In Boreali, the Court ruled that the fact that the health agency was drafting a new type of restriction was evidence that it was “writing on a clean slate” rather than tweaking or otherwise perfecting an existing restriction that was clearly within its purview. Same thing here. It was a new and innovative regulation which, according the this Court’s reasoning, is why it ought to be handled by a legislative body rather than an administrative agency.
Finally, the Court in Boreali found that a simple no-smoking rule did not involve expertise in health matters. In today’s decision, too, the Court found that a simple beverage size ban did not require health expertise and, therefore, is beyond the scope of authority granted to the Board of Health.

Under today’s ruling, any one of these four factors could invalidate agency action. Such strict application of Boreali may ultimately represent chilling new limits on the powers of health boards in New York state.

While analysts may disagree over whether the Court’s decision today was a well-reasoned one, and it may yet be subject to further appellate review, it is important to note that it is basically a dispute about New York law and not a fundamental legal problem with placing limits on serving sizes for sugary beverages that is at issue.

But that said, the real disagreement may be more about evolving norms surrounding sugary beverages than about administrative authority. As norms around tobacco use evolved over time, Boreali is increasingly seen as an example of the tobacco industry gaining a temporary victory at the cost delaying the protection of the public’s health. Perhaps today’s decision will be seen in a similar light in the not-too-distant future as norms around sugary beverages continue to evolve.

-Mark Gottlieb, J.D., Executive Director
Public Health Advocacy Institute at Northeastern University School of Law

Original Post
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Today the New York City Board of Health approved first-in-the-nation limits on the maximum size of sugary drinks served in restaurants, theaters, and sports venues. The vote was 8-0 in favor of adopting the regulation with one abstention. Grocery and convenience stores are exempt and diet drinks, juices, and drinks that are 50% of more milk (or milk substitute) are excluded.

While the measure drew ire from critics throughout the political spectrum, and has been inaccurately characterized as a “ban,” it has succeeded in invigorating the debate on the role of sugary drinks in obesity and the role of government to encourage mindful consumption. Such mindful consumption will begin 6 months from today when the new rule should go into effect.

In the meantime, there may be efforts by big drink stakeholders to challenge the regulation. One such group, New Yorkers for Beverage Choices, a group closely aligned if not controlled by the American Beverage Association, has hinted at such a challenge. The pro-business think tank, the Washington Legal Foundation, has published comments on the measure that suggest the basis for a legal challenge. A credible legal challenge could result in the granting of a injunction that could delay or derail the beverage size restriction. However, there appears to be little chance that such a challenge will lead to any measure of success.

The Washington Legal Foundation’s primary legal argument to oppose the measure is that it is the type of action that is normally reserved for legislation rather than rule-making by an administrative agency. The problem with that argument is that regulating serving sizes of sugary drinks in food establishments is clearly within the New York City Department of Health and Mental Hygiene’s authority to protect the public’s health under the City Charter’s sec. 558 and to engage in rule-making under sec. 1043. The Washington Legal Foundation public comments cite to a 1980s case, Boreali v. Axlerod. The case involved an early New York non-smoking rule that was overturned primarily because the state’s Public Health Council considered the economic impact of the restriction on businesses and offered waivers for those that could show financial hardship. This went beyond the Public Health Council’s legal authority to issue rules based solely on protecting health. Here, however, there is no waiver process and no consideration by the Board of Health of the economic impact this rule might have on businesses.

A second issue raised by the Washington Legal Foundation is that the problem of obesity is an important issue of concern to society and that dealing with such social issues is best left to legislative bodies rather than regulatory agencies. Citing again to the Boreali case, WLF suggests that this is a matter that it should only be addressed by elected officials and not agency appointees. Essentially, they are making a philosophical rather than a legal argument. Legally, this rule-making is very clearly within the agency’s purview.

In yesterday’s New York Times, an attorney who has previously represented New York restaurants suggested that the rule could be overturned on Constitutional grounds. This would be a reference to the Commerce Clause (Art. I, Sec. 8, Clause 3 of the U.S. Constitution) which grants Congress the power to regulate commerce among the states. If a state or, as in this case, a political subdivision of a state, passes a law or rule that substantially affects interstate commerce, it is possible that a court would find that the Commerce Clause reserved that power to Congress and the law or rule would be found to be unconstitutional. However, in this instance, there is virtually no argument that could be made that the beverage size rule could affect interstate commerce any more than the cup size could be found to be a form of free speech that the rule unconstitutionally restricts. Neither argument is credible enough to argue in a court room.

There is virtually no chance that the rule will be successfully challenged. Either threats of litigation will not materialize or, if they do, will be quickly dismissed. That result will encourage other communities to replicate the courageous action taken in new York City by Mayor Bloomberg and the Board of Health.

-Mark Gottlieb, J.D., Executive Director
Public Health Advocacy Institute at Northeastern University School of Law

For Many Living With Limb Loss, “Open Happiness” Doesn’t Ring True

by Cara Wilking, JD

As part of its 2012 Olympic Games marketing blitz, the Coca-Cola Company has assembled a “Coca-Cola 8-pack of Athletes” to “serve as Coca-Cola ‘Ambassadors of Active Living’ to help encourage and inspire people to lead active, balanced lives.”[1] This group includes Jessica Long, a 2012 U.S. Paralympic Swimming Team nominee.[2] Ms. Long was born with fibular hemimelia, a condition of the lower legs, and became a double leg amputee at 18 months old.[3] Ms. Long’s athletic achievements are undeniable and her seamless inclusion in the marketing campaign is in line with equality and dignity for all. The tragic reality of lower limb loss, however, is that the majority of people suffering from non-traumatic lower limb loss are diabetic, and it is not medically appropriate for diabetics to consume sugar-sweetened beverages.

From what has been released of the campaign so far, the “Coca-Cola 8-Pack of Athletes” promotes full-sugar Coca-Cola. Ms. Long is no exception. Her commercial, entitled “Home,” shows her swimming as a child in her grand-parents’ backyard pool and moves through a range of global swim competitions.[4] The commercial ends with Ms. Long drinking from a bottle of full-sugar Coca-Cola. Cans of full-sugar Coca-Cola are shown next to the tagline “Open Happiness” and an announcer says, “Support our athletes with the Cola-Cola Olympic Series Collector’s Cans.” In other words, “Buy Coke!”

If one of the goals of Coca-Cola’s “8-pack of Athletes” campaign is to inspire people, including those suffering from limb loss, to lead active lives, then why does the campaign promote a product diabetics are under doctor’s orders to avoid?

Sugar-sweetened beverages like Coca-Cola are associated with obesity-related diseases including Type 2 Diabetes.[5] The Centers for Disease Control estimates that as many as 1 in 3 U.S. adults could have diabetes by 2050.[6] The links between diabetes and limb loss are stark and tragic:

Diabetes is the leading cause of non-traumatic lower limb amputation among adults in the United States.[7]
More than 60% of non-traumatic lower-limb amputates are people with diabetes.[8]
In 2008, more than 70,000 people with diabetes had a leg or foot amputated [9]
Diabetes rates for people aged 20 years or older are:
- 7.1% of Whites (non-Hispanic)
- 8.4% of Asian Americans
- 12.6% of African Americans (non-Hispanic)
- 11.8% of Hispanics[10]
African Americans and Hispanics are almost 3 times as likely as non-Hispanic whites to suffer from lower-limb amputations[11], [12]
Researchers estimate that the number of people in the United States with diabetes who are living with the loss of a limb will nearly triple by the year 2050.[13]

As inspiring as Ms. Long’s journey is, for many people living with the loss of a limb there is no “happiness” to be found in a can of Coke—a fact the Coca-Cola Company seems to have overlooked.

[1] The Coca-Cola Company, Press Release, Coca-Cola Opens Happiness With Its New “8-Pack” of Athletes for London 2012 Olympic Games, May 17, 2011, http://www.thecoca-colacompany.com/dynamic/press_center/2011/05/eight-pack-of-athletes-for-london-2012-olympic-games.html; and The Coca-Cola Company, Move To the Beat of London, http://www.coca-cola.com/theolympics/en-US (last visited June 28, 2012).

[2] Coke 2012 Olympics Commercial: Jessica Long “Home”, YouTube.com, June 19, 2012, CocaCola, http://www.youtube.com/watch?v=jpFrYaL6N2w&feature=plcp (last visited June 27, 2012).

[3] About Jessica, GraceLong.com, http://www.gracelong.com/index.php/about (last visited June 27, 2012).

[4] Coke 2012 Olympics Commercial: Jessica Long “Home”, YouTube.com, June 19, 2012, CocaCola, http://www.youtube.com/watch?v=jpFrYaL6N2w&feature=plcp (last visited June 27, 2012).

[5] Vasanti S. Malik et al, Sugar-Sweetened Beverages, Obesity, Type 2 Diabetes Mellitus, and Cardiovascular Disease Risk, 12 Circulation, 1356-1364 (2010).

[6] U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Press Release, Number of Americans with Diabetes Projected to Double of Triple by 2050, http://www.cdc.gov/media/pressrel/2010/r101022.html.

[7] U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Diabetes Fact Sheet: National Estimates and General Information on Diabetes and Prediabetes in the United States, 2011, at 1, http://www.diabetes.org/in-my-community/local-offices/miami-florida/assets/files/national-diabetes-fact-sheet.pdf.

[8] U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Diabetes Fact Sheet: National Estimates and General Information on Diabetes and Prediabetes in the United States, 2011, at 8, http://www.diabetes.org/in-my-community/local-offices/miami-florida/assets/files/national-diabetes-fact-sheet.pdf.

[9] U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Living with Diabetes: Keeping Your Feet Healthy, http://www.cdc.gov/Features/DiabetesFootHealth/.

[10] Diabetes Statistics, American Diabetes Association, http://www.diabetes.org/diabetes-basics/diabetes-statistics/?loc=DropDownDB-stats (last visited June 27, 2012).

[11] Living with Diabetes: African Americans & Complications, American Diabetes Association, http://www.diabetes.org/living-with-diabetes/complications/african-americans-and-complications.html (last visited June 27, 2012).

[12] National Limb Loss Information Center, Minorities, Diabetes and Limb Loss (May 2008), http://www.amputee-coalition.org/fact_sheets/multicultural/all_groups.pdf (citing Robert Preidt, Blacks, Hispanics Hospitalized More Often for Diabetes, Heart Disease, HealthDay: News for Healthier Living, August 15, 2006.

[13] Kathryn Ziegler-Graham et al, Estimating the Prevalence of Limb Loss in the United States: 2005 to 2050, 89 Archives of Physical Medicine and Rehabilitation 422, 424 (March 2008).

PHAI’s Friedman and Gottlieb Co-author: “Soda and Tobacco Industry Corporate Social Responsibility Campaigns: How Do They Compare?” in PLoS Medicine

PHAI senior staff attorney Lissy Friedman and executive director Mark Gottlieb collaborated with Lori Dorfman, Andrew Cheyne and Asiya Wadud of the Berkeley Media Studies Group to produce this article published today in PLoS Medicine.

Soda companies’ PR campaigns are bad for health:

Health advocates need to organize strong public health campaigns to educate the public and policymakers about the dangers of both sugary beverages and the misleading industry corporate social responsibility campaigns that distract from their products’ health risks, according to US experts writing in this week’s PLoS Medicine.

In a Policy Forum article, the authors (media and public health experts from the Berkeley and Boston, USA) examined prominent campaigns from industry leaders PepsiCo and Coca-Cola, that, according to the authors, have embraced corporate social responsibility (CSR) with elaborate, expensive, and multinational campaigns.

The authors say that while soda companies may not face the level of social stigmatization or regulatory pressure that now confronts Big Tobacco, concern over soda and the obesity epidemic is growing.

In response to health concerns about their products, the authors argue that soda companies have launched comprehensive CSR initiatives sooner than did tobacco companies but that these campaigns echo the tobacco industry’s use of CSR as a means to focus responsibility on consumers rather than the corporation, bolster the companies’ and products’ popularity, and to prevent regulation.

However, unlike tobacco CSR campaigns, soda company CSR campaigns explicitly target young people and aim to increase sales.

The authors say: “It is clear that the soda CSR campaigns reinforce the idea that obesity is caused by customers’ “bad” behavior, diverting attention from soda’s contribution to rising obesity rates.” They continue: “For example, CSR campaigns that include the construction and upgrading of parks for youth who are at risk for diet-related illnesses keep the focus on physical activity, rather than on unhealthful foods and drinks. Such tactics redirect the responsibility for health outcomes from corporations onto its consumers, and externalize the negative effects of increased obesity to the public.”

The authors argue: “Emerging science on the addictiveness of sugar, especially when combined with the known addictive properties of caffeine found in many sugary beverages, should further heighten awareness of the product’s public health threat similar to the understanding about the addictiveness of tobacco products.”

They conclude: “Public health advocates must continue to monitor the CSR activities of soda companies, and remind the public and policymakers that, similar to Big Tobacco, soda industry CSR aims to position the companies, and their products, as socially acceptable rather than contributing to a social ill.”

This article is one in a PLoS Medicine series on Big Food that examines the activities and influence of the food and beverage industry in the health arena. The series runs for three weeks beginning 19 June 2012 and all articles will be collected at www.ploscollections.org/bigfood. Twitter hashtag #plosmedbigfood

Funding: This research was supported by the Healthy Eating Research program (http://www.healthyeatingresearch.org/) of the Robert Wood Johnson Foundation, grant #68240. The funders had no role in study design, data collection and analysis, decision to publish, or preparation of the manuscript.

Download the article here.

Coca-Cola Unscathed by Happy Meal Changes?

1.3 ounces of french fries are out. Caramel dipping sauce is out. A few apple slices are in. Sugary drinks, however, appear to be fully in the mix if not more so now. The 12 oz. “child’s size” Happy Meal soft drink, ranging from 110-120 calories for the non-diet carbonated options, remains the same. The new chocolate milk option has 170 calories and 25 grams of sugar. To put that into perspective, the container of caramel dipping sauce that will no longer be offered has 70 calories and 9 grams of sugar. As the fountain syrup supplier for McDonald’s, The Coca-Cola Company must be rather pleased that McDonald’s made no overt change to its default drink option for its “most popular” Happy Meal combinations–soda. Chocolate milk may compete with soda, but for parents concerned about calories McDonald’s has managed to position its Coca-Cola brand Happy Meal soda offerings as lower calorie alternatives to the flavored milk. Makes one wonder whether The Coca-Cola Company is whistling “badda ba, ba ba, I’m lovin’ it” in response to McDonald’s Happy Meal menu changes.